Recently, I was able to present at the 8th Annual Forum on Defending and Managing Employment Discrimination Litigation for ACI in Chicago. My topic was the use of social media in the hiring process, including online applications and social media background checks. I want to briefly talk about two specific “nightmares” that confront employers in the hiring process. First, the hit Broadway show, Hamilton, came under fire when the producers published on various online locations the following casting call: “HAMILTON is holding OPEN AUDITIONS for Singers who RAP! Seeking NON-WHITE men and women, ages 20's to 30's for Broadway and upcoming Tours…” The controversy centered on the non-white aspect of the online advertisements. Although there was not any legal action taken that I am aware of, the casting call was modified to comply with Title VII. Employers must remember that, when advertising, they cannot discriminate based on race, religion, sex, age and other protected categories. All employers should be aware that the Department of Justice has posted on their website their “Best Practices for Online Job Postings.”
The second “nightmare” I want to address involves a recent case filed by the EEOC against Grisham Farm Products. The lawsuit was filed in March, 2016 and settled 3 months later in June, 2016. The lawsuit alleged violations of the ADA and GINA as the result of Grisham using a 7-page online job application, of which 3 pages contained 43 questions related to health issues. The online job application cautioned that “All questions must be answered before we process your application.” The health related questions included inquiries about prior hospitalizations, treatment for HIV and alcoholism, asked for a 10-year history of health issues such as allergies, arthritis and eating disorders, and asked for the 24-month history of consultations with doctors, chiropractors and therapists.
Practice pointers. Employers who use online advertising and/or job applications must be compliant with the laws pertaining to discrimination. When designing and developing job advertisements or applications, make sure that whoever does the design is familiar with the laws. It is advisable to review the end product with competent employment counsel to reduce exposure. Advertising for non-whites and asking multiple health-related questions on an application that may or may not be related to the essential functions of the job on an application is illegal, whether online or in person. Finally, if the employer uses algorithms to review and assess online job applications, it is imperative that the algorithms not discriminate based on age, sex, race, etc.
- EEOC Commissioner Barker was the keynote speaker. She is currently the only Republican on the Commission. She warned that the EEOC is strongly considering adding “unemployed” as a protected category: i.e., you cannot refuse to hire someone due to the fact that they are unemployed. This is already the law in at least one state, and I anticipate that this trend will catch on in other states, if not at the federal level. LGBTQ issues will continue to be at the forefront, including bathroom issues. To date, at least one federal circuit court has found that transgender is not a protected category, rebuking the EEOC's position. It is anticipated that the EEOC will issue guidance on retaliation shortly. The EEOC is also looking into “accent” discrimination: can you discriminate against an employee/potential employee due to their accent? Along similar lines, religious discrimination is also a hot topic for the EEOC. The EEOC is considering issuing guidance on Joint Employers and Independent Contractor status. The EEOC is also looking into whether attendance can be an essential function of the job. Keep in mind that the positions taken by the EEOC are not always upheld by the courts, but it is expensive, time consuming and can lead to some very bad publicity if an employer is sued by the EEOC: a press release is always issued. I anticipate the EEOC, as well as other federal agencies (DOL, NLRB, etc.) will be pushing their agendas very aggressively leading up to the November elections.
- Leave under the ADA/FMLA is being attacked. The argument is that there is no bright line test as to what is “reasonable,” one size does not fit all. Any discussions with an employee on ADA/FMLA leave should be interactive to determine if it is right for that particular employee.
- More claims are being made concerning whether employer websites are ADA compliant.
- Technology continues to outpace workplace rules and regulations: Pokémon Go.
- As one speaker bluntly put it, you can't control what an idiot will do in the workplace. It is imperative to continue to train and educate all employees, and take proper disciplinary action when rules are violated.
- Elections matter. With November fast approaching, all 3 branches of government, the President, Congress and especially the Supreme Court will be impacted. Depending on which party you support, there will be many nightmares leading up to and after the election.